Basanta Kumar Das vs State Of Odisha & Others
2023 Latest Caselaw 12605 Ori

                 IN THE HIGH COURT OF ORISSA AT CUTTACK

                         WPC(OAC) No.3493 of 2015

        Basanta Kumar Das                     ....   Petitioner
                                                   Mr.S. Rath, Adv.

                                         -versus-

        State of Odisha & Others              ...     Opp. Parties
                                                   Mr. S. K. Samal, AGA
                                                   Mr. S.K. Patra, Adv.
                                                   (for opp. Party No.3)

                                 CORAM:
                    JUSTICE BIRAJA PRASANNA SATAPATHY

                                       ORDER

13.10.2023 Order No

7. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.

2. Heard Mr. S. Rath, learned counsel appearing for the Petitioner, Mr. S.K. Samal, learned Addl. Government Advocate along with Mr. S.K. Patra, learned counsel appearing for Opp. Party No.3.

3. The present Writ Petition has been filed inter alia with the following prayer.

"(1) orders under Annexure- 1 & 2 be quashed. (2) The respondents be directed to refund the recovery amount of Rs.1,56,723/- to the applicant with 12% interest"

4. It is contended that while the Petitioner was continuing as a Peon in the establishment of Opp.

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Party No.2, he retired from his service on attaining the age of superannuation on 30.11.2014. After his retirement, the Petitioner became eligible and entitled to get the G.P.F final accumulation to the tune of Rs. 73,727/-, proposal of which was submitted by Opp. Party No.2 on 13.11.2014. However, it is contended that on the ground that an amount of Rs.30,000/- was inflated in opening balance of the Petitioner's GPF account in the opening balance for the year 1996-97, and the said amount having earned interest of Rs.1,26,723/-, Petitioner was held liable to refund the excess amount, so wrongly indicated in the opening balance to the tune of Rs.30,000/- along with interest of Rs.1,26,723/-, totalling Rs.1,56,723/-. After making such calculation and by adjusting the GPF balance of Petitioner to the tune of Rs.73,727/-, Opp. Party No.3 requested Opp. Party NO.2 to recover the balance amount of Rs.82,996/- under Annexure-1. Basing on such request, Opp. Party No.2 recovered the balance amount of Rs.82,996/- from the benefit as due to the petitioner towards unutilized leave salary vide Annexure-2.

4.1. It is contended that the amount in question which was alleged to have been wrongly shown in opening balance of GPF account for the year 1996- 1997 to the tune of Rs.30,000/- was never brought to the notice of the Petitioner by providing the statement of the account for the said year, in terms of the provision contained under Rule 36(2) of the General

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Provident Fund(Orissa) Rules. It is accordingly contended that since petitioner has no fault with regard to such wrong recording of Rs.30,000/- in the opening balance for the year 1996-97 and the same since was never brought to the notice of the Petitioner, as provided under Rule 36(2) of the aforesaid Rules, the petitioner is not liable to pay the amount in question along with interest as assessed and intimated vide Annexure-1. Learned counsel for the Petitioner contended that Petitioner is entitled to get refund of GPF balance of Rs.73,724/- which was adjusted towards recovery as indicated in Annexure-1 and the recovery of Rs.82,996/- so made by Opp. Party No.2 vide order under Annexure-2.

5. Mr. S.K. Samal, learned Addl. Govt. Advocate along with Mr. S.K. Patra, learned counsel appearing for Opp. Party No.3 on the other hand contended that because of the wrong committed by the authority in inflating the opening balance for the year 1996-97, the Petitioner not only got the benefit of such inflated amount of Rs.30,000/- but also he earned interest to the tune of Rs.1,26,723/- on the said amount totaling a sum of Rs.1,56,723/-. It is contended that since the Petitioner got the benefit of Rs.30,000/- with interest of Rs.1,26,723/- because of the wrong committed by the authority, the Petitioners is liable to pay the said amount. After finding such irregularity, Opp. Party No.3 adjusted the GPF entitlement of the Petitioner to the tune of Rs.73,727/- and directed Opp. Party No.2

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to recover the balance amount of Rs. 82,996/- vide Annexure-1. The balance recoverable amount was recovered from the leave salary of the Petitioner vide Order issued under Annexure-2.

6. To the aforesaid submission of learned Addl. Govt. Advocate as well as learned counsel appearing for Opp. Party No.3, Mr. Rath contended that since for the fault of the Opp. Parties, GPF Account of the petitioner was inflated to the tune of Rs.30,000/- for the year 1996-97 and the same since was never brought to the notice of the petitioner in terms of the provision contained under Rule 36(2) of the GPF Rule, the Petitioner is not liable to refund any such amount.

7. In support of his submission, Mr. Rath, learned counsel relied on the decision of the Hon'ble Apex Court in the case of Calcutta State Transport Corporation & Others Vs. Ashit Chakraborty & Ors. Hon'ble Apex Court in Para 11 of the said judgment has held as follows:

"11. It is not in dispute that the respondent no.1` had exercised his right to receive pension under the 1990 Regulations in the year 1991. Thereafter, it was the duty of the Corporation to have given effect to the same. Merely because there were some wrong deductions from his salary and he was treated as member of the CPF Scheme, cannot be permitted to be raised as a ground to defeat his rightful claim. The pension was to start after retirement of the respondent. When the same was not released to him, immediately representation was made by him. As no response was received fro the appellant, the writ petition was filed. The argument that there are number of similarly situated employees who will also stake their claims, will not deter this Court in granting the relief to the respondent, which is legitimately due to him. Rather this argument shows that the Corporation was at fault in implementing the 1990 Regulations in the cases of number

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of employees though these were notified on 4.1.1991 and were given retrospective effect form 1.4.1984. Technical objections are sought to be raised, which are not tenable. For any fault on the part of the Corporation, the employees cannot be made to suffer."

8. Having heard learned counsel for the parties and after going through the materials available on record, it is not disputed by either of the parties that an amount of Rs.30,000/- has been wrongly credited to the GPF account of the Petitioner for the year 1996-97. It is also not disputed by either of the parties that the said fact was only brought to the notice of the petitioner after his retirement on 30.11.2014. Since it is found that the Petitioner has no fault with regard to such wrong credit of Rs.30,000/- in the opening balance for the year 1996-97 and since it is also found that no such notice was ever issued to the Petitioner in terms of the provision contained under Rule 36(2) of the GPF (Orissa) Rules, it is the view of this Court that the Petitioner is not liable to refund the amount so far as the interest part is concerned amounting to Rs.1,26,723. This Court therefore permits the authority-Opp. Party No.3 to recover a sum of Rs.30,000/- which was wrongly credited to the account of the petitioner for the year 1996-97 and release the balance amount of Rs.43,727/-. This Court also held the recovery of Rs.82,996/- from the leave salary of the petitioner by Opp. Party No.2 basing on Annexure-1 vide Order under Annexure-2. While holding so, this Court directs Opp. Party No.3 to release the balance G.P.F amount of Rs.43,727 and

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Opp. Party No.2 to release the recover amount of Rs.82,996/- from the leave salary of the Petitioner. The amount in question shall be returned by Opp. Party Nos.2 & 3 as directed within a period of six (6)weeks from the date of receipt of the order.

The Writ Petition is accordingly disposed of.

(Biraja Prasanna Satapathy) Judge

sangita

Signature Not Verified Digitally Signed Signed by: SANGITA PATRA Reason: authentication of order Location: High Court of Orissa, Cuttack Date: 16-Oct-2023 18:05:09